Koch v. Andres

Jan 20, 1998
Versions:246 A.D.2d 596
667 N.Y.S.2d 282
1998 N.Y. App. Div. LEXIS 407

In a custody proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Suffolk County (Snellenburg, J.H.O.), entered March 21, 1997, which, inter alia, denied her application for custody of the subject child and ordered that the child be returned to the natural parents forthwith.

Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, to make an order forthwith with regard to the temporary custody of the subject child and for temporary visitation by the noncustodial parties, and thereafter for further proceedings consistent herewith to be heard together with any other pending application by the petitioner for the custody of the child.

The Family Court made no determination with regard to the question of extraordinary circumstances, incorrectly interpreted the holding in Matter of Bennett v Jeffreys (40 NY2d 543), and applied the incorrect standard. Accordingly, the court’s determination must be reversed. We are informed by counsel that a new petition for custody is to be heard at the end of January 1998. At that hearing, the court should consider all of the issues, facts, and circumstances in keeping with the protocol set forth in Matter of Bennett v Jeffreys (supra) and make a new custody determination. We express no opinion as to which party should prevail. Rosenblatt, J. P., Miller, Ritter and Copertino, JJ., concur.